I haven’t had a chance to start watching “Making a Murderer” yet, but I plan to soon. Probably this weekend. The documentary series on Netflix examines the conviction of a man and his teenage nephew for murdering a woman, and apparently (I’ve been trying to avoid spoilers) makes a case for their innocence. While I’ve been trying to avoid spoilers, I did read an article the other day that pointed out prosecutors say important information was left out of the mini-series that shows Steve Avery, the subject of the documentary, is not innocent.

On the other hand, if he was set up for the murder the way he was set up and went to prison for 18 years for a rape he didn’t commit, then, yeah, they’re going to say stuff like that.

I’ll hold off judgment until I’ve watched it. Though even then, I know I won’t know for sure.

It reminds me of a multi-part documentary I watched several years ago, “The Staircase,” which apparently just re-aired on Sundance. The Academy Award-winning mini-series by filmmaker Jean-Xavier de Lestrade was incredibly sympathetic to the subject of it, author Michael Peterson, who had been convicted after his wife, Kathleen, was found battered and dead at the bottom of a blood-spattered staircase in their family home in North Carolina.

After I watched it, I read “A Perfect Husband,” by Aphrodite Jones about the same case. And it was a whole different story. I was convinced after reading that, despite the hours of documentary footage that would convince some viewers otherwise, that Peterson is guilty.

It’s a big reminder that we don’t become experts on a topic from watching a TV series or reading a book. The information we’re given is not only shaped by who’s telling the story, but also our own perceptions and comfort zones.

A case here in Maine, that of Dennis Dechaine, is another example. Dechaine was convicted of killing 12-year-old Sarah Cherry in 1988. A tenacious group of supporters believe he’s innocent and are pushing for the case to get another look. A filmmaker who also believes in Dechaine’s innocence is making a documentary.

The general consensus in Maine seems to be that Dechaine is guilty and his supporters are a little nuts. I won’t get into all the details of the case here, but I’ve done a lot of reading on it – more than “The Staircase” case and certainly more than “Making of a Murderer” – and I think there’s a compelling argument for his innocence, including a fairly obvious more likely suspect.

But again, it’s all conjecture.

Even if we sit through every minute of a court case and listen to every word of testimony, we don’t get the full story.

I just finished reading Jon Krakauer’s “Missoula: Rape and the Justice System in a College Town,” which is an in-depth look at college campus sexual assault. It’s a depressing reminder that our attitudes about rape and its victims never seems to change. Just as depressing is the farce many of those in the justice system make of “justice.” Particularly when money, power and public image are involved.

I understand that defense lawyers need to defend. In fact, I’m a big supporter of lawyers who defend unsavory defendants. I fully believe in people’s constitutional right to representation and that the justice system only works when those accused of crimes are represented well. Anyone who believes in our Constitution should feel the same. Let’s hear it for our Sixth Amendment rights!

But that can all end up falling apart fast.

The book quotes notorious defense attorney Alan Dershowitz, who says, basically, that defense lawyers will lie like dogs to get an acquittal. It’s all about winning, not about the truth. I don’t know if all lawyers feel that way, but the ones in “Missoula” certainly do. And they get a lot of help from the prosecution and law enforcement.

One of the disturbing things about the book is that most people would rather have their assumptions and general conclusions validated than be forced to look at things a different way. “Making a Murderer” and “The Staircase” lets us believe we’re looking at things from a different angle and shaking up our comfortable perceptions. We get all giddy with the possibilities, that this guy who everyone believe murdered someone maybe didn’t. In the end, though, for us it’s really just fiction and the stakes are low. Most of us are lucky enough that we’ll never have to go through someone in our family or a close friend being murdered. Or see a family member or friend accused, rightly or wrongly, of murder.

“Missoula,” on the other hand, reinforces an all-too-familiar scenario.

We’d rather believe the nice-guy football star really is a nice guy, not a rapist. No matter what the evidence, we will not believe a “friend” or acquaintance, or anyone but the scary stranger in the bushes, would rape a woman. Even if that woman is a friend, too.

We don’t want our world and perceptions shaken up that much. It’s why the huge majority of rape victims never report it or tell a soul. Just about everyone reading this post knows someone who has been raped who has never told. Or is a victim herself. Or himself. There are many more silent rape victims out there than people wrongly convicted of murder.

The documentaries about the possible wrongful convictions, as well as “Missoula,” are studies of how the justice system can go wrong.

They’re also studies of how easily manipulated we can be as observers, not only by the information that’s presented to us that we don’t question, but our own perceptions and comfort zones.

It seems to me that there’s a long distance between innocent and “proven guilty.” On both juries I’ve sat on, it was clear “something” happened, but by the time the prosecution finished presenting their case (or in the the second one, what little they were allowed to present of their case), there was no way to convict. This doesn’t mean the defendants were innocent of the crime, just innocent in court.

Very true, Barb. One of the unfortunate things about our legal system is that so much of the evidence never makes it infront of the jury. Not because it’s tainted but because the court often feels that the juries will be biased by what they see. Tough to try cases with only some of the evidence. In my view they should be shown everything, whether damning or pointing toward innocence. Tough to
Make sound decisions without all the facts. Just my two cents.

Most of the criminal defense work I did as a lawyer was at the Law School’s Cumberland Legal Aid Clinic for a year and a half where some of the cases involved indigent defendants who understandably thought they’d get a better shake with a supervised student attorney than with an overburdened court-appointed lawyer getting peanuts for his or her work. Anyway, I don’t consider myself an expert.

As Barb Ross suggested, there’s often a big difference between being found not guilty (the State or Feds couldn’t prove their case beyond a reasonable doubt, or so the Court or jury thought) and being actually innocent, and if you’re defense counsel you don’t want to know the absolute truth, as it can compromise your job as defense counsel.

I agree generally with Bruce Coffin about the jury getting to see stuff which is arguably relevant. After all, the defendant has the advantage of “beyond a reasonable doubt” standard. The founding fathers apparently believed that it is better for a thousand guilty persons to go free than for one innocent person to be found wrongly guilty.

The basis for exclusion of evidence is often that the evidence is only tangentially relevant and outweighed by its prejudicial nature. For example, graphic pictures of an injured victim often add little to the case against the defendant, but if jurors are horrified by it, they need look no further that the defendant for someone to project their outrage upon. If a defendant is found guilty, that kind of evidence may be more relevant in sentencing.

Prosecutors and the State also, as officers of the court, have a duty to bring forth all evidence discovered including exculpatory stuff. Whether they do is, of course, not clear, just as it is not clear if defense counsel is manufacturing alibis or otherwise lying in their arguments or presentation.

It’s horrible to think of rapes going unpunished, just as much sexual abuse has been underreported and, in my view, not adequately prosecuted . It’s too bad the system doesn’t have a way to protect the identity of victims. Also the statute of limitations on these crimes should be longer in view of the fact that victims often were young when the crime happened and/or need years to heal and to be able to speak about the incident(s) and overcome shameful feelings.

My son recommended Making A Murderer, but says the diametrically opposing views presented make him think someone’s lying. I told him maybe everyone’s lying, at least a little.